AIPAC Defendants Did Not Seek Classified Document, Court Rules

In a favorable decision for two former officials of the American Israel Public Affairs Committee who are charged with conspiracy to unlawfully gather national defense information, a federal court ruled (pdf) late last week that they did not solicit actual classified documents and that the government cannot now claim that they did.

The latest decision follows an earlier ruling last week that denied the defendants’ motion to dismiss the case altogether.

The only document that was solicited by the defendants was described in their August 2005 indictment (pdf) as “not classified.”

“Significantly, this is the only overt act in which one of the defendants is alleged to have requested a document from a government official,” the court noted in the new ruling.

“While defendants are alleged to have discussed classified information with government officials, including information contained in classified documents, the superseding indictment does not allege that either [defendants] Rosen or Weissman ever sought an actual copy of any classified document from a government official,” the court noted.

But lately, the prosecution has changed its position and now wants to argue that the requested document was in fact classified after all.

The court said no. To make such a claim at this stage is not permissible since it “alters an essential fact alleged in the superseding indictment” and would therefore be unconstitutional.

The August 11 ruling by Judge T.S. Ellis, III, was first reported today by the New York Sun.

While advantageous to the defendants, the new ruling underscores the radical implications of this unprecedented case.

The upshot of the court’s interpretation is that the defendants (or anyone else) may be guilty of violating the Espionage Act even if they did not solicit classified “documents,” but only “information.” And not only that, the “information” they gather need not be classified, as long as it is “related to the national defense” and closely held by the government.

“Although not strictly necessary, nor always sufficient, the classification of information is highly probative of whether it is, in fact, ‘information related to the national defense’ such that a defendant could be prosecuted for its unauthorized disclosure,” the latest ruling said.

This is a crucial observation.

Classification may “not [be] strictly necessary” to justify prosecution of unauthorized disclosures (including disclosures by non-governmental persons such as the defendants) since, the Court affirmed, there are various kinds of unclassified, national defense-related information that are protected by the Espionage Act.

(On the other hand, mere classification may not be “sufficient” to render information protected by the specific terms of the Espionage Act because there are some kinds of classified information, e.g. some diplomatic or intelligence information, that are plainly not related to “national defense.”)

I discussed some of the implications of the AIPAC case on the NPR program On the Media this week (“No Secrets Allowed”).

And though Lebanon has one or two other things to worry about these days, word of last week’s decision in the AIPAC case was even featured in the Lebanese news outlet Ya Libnan, datelined “Beirut and Washington” (based on a Washington Post story by Jerry Markon).